does anyone know if you can bring up new ideas on appeal in the 2nd circ. like breach of fiduciary duty when in district ct. it was vesting of retiree benefits under erisa? we lost in district court and judge disagreed with our arg that contract was ambiguous. need to show that contract is ambig to let in extrinisic evidence. end goal: getting retireers they benefits that were promised for life. but contract is sneaky and has clause saying have right to amend terminate plans. any ideas????? thanks

lost in district court, judge in 2nd circuit said contract is not ambiguous so we can't bring in extrinsic evidence to interpret contract. extrensic evidence would help us since co. sent letters to retireers saying they have lifetime benefits. does anyone know of any case law 2nd circuit or any other circuit that would help me argue the following:

1) that the co. made a promise to vest benefits for life.

2) contract is ambiguous

3) need to look at extrinsic evidence

4) anything else.

unfortunately the contract looks pretty straightforward b/c co. has a clause on right to amend/terminate. and says plan/coverage is only for duration of contract.

any ideas greatly appreciated.

FAB 2003-3 which came out in may, 2003 provides that fees for distrubutions can be charged to participants when distrubutions are paid on a periodic basis.

Benefit Distributions. Some plans provide for the imposition of benefit distribution charges on the participant to whom the distribution is being made. These charges may be assessed for benefit distributions paid on a periodic basis (e.g., monthly check writing expenses). ERISA does not specifically preclude the allocation of reasonable expenses attendant to the distribution of benefits to the account of the participant or beneficiary seeking the distribution.

certain commentators have said they were not sure if this applied to lump sum distributions. does anyone have an opinion on this?

How are you allocating funds returned to a plan from a breakpoint settlement from the mutual fund company.

Can QMACs be used to satisfy Top Heavy Minimums?

Is there a difference between a Health Reimbursement Arrangement and a Self-Insured Medical Reimbursement Plan? Are they one in the same? Both requiring written plan documents?

Can anyone tell me how they are handling IRA's rolling into a retirement plan? Are you requiring any type of documentation detailing that the IRA is qualified or what portion may be after tax? My understanding is that the IRA custodians generally will not sign off on the rollover contribution form indicating all $ are qualified because they do not track after tax, it is the participant's responsibility. Is it true that for an IRA distribution, the entire amount of distribution is recorded in box 2a, and box 2b is checked indicating taxable amount cannot be determined?

In the past, we required the Plan Sponsor of the distributing company to sign off that the funds were coming from a qualified plan, or required a copy of the determination letter from the distributing plan. This doesn't seem possible with IRA custodians.

Does the total value of the plan have to be part of the SAR?

Small client, 5 EEs, 3 family and 2 non related. Plan has $1mil plus with $150k split between the non related EEs. Plan sponsor is concerned that they will do the math and see what the owner etc have. Says it is a company breaker.... If the total value of the plan isn't disclosed then he feels it will be fine....

Can that be omitted?

We have a potential new client with a question on a successor Plan. Here are the particulars:

Attorney A is a PA and has his own Plan with 1 employees

Attorney B is a Pa and has his own Plan with 5 employees

Attorney C is a sole prop and has no Plan. He has 3 employees.

The three Attorneys are contemplating establishing an LLP. They would have different ownership percentages, with Attorney A owning about 70%, Attorney B 29% and Attorney C 1%.

Would it be possible to amend Attorney A or B's Plan as a successor plan?

Thanks

A participant takes out a loan in 2001 with the final payment due in 2006. In 2004, he wants to take an additional loan with a 5-year repayment period and include the initial loan as part of the new loan.

Since the new repayment period would extend beyond the due date of the initial loan, as long as the outstanding balance of the old loan plus the total of the new loan do not exceed the 1/2 vested balance/$50,000 limit, is everything fine within the rules/regulations? Any other considerations?

Thanks.

Hello All;

On June 24th, there was an article on the BenefitsLink Newsletter titled "IRS Plans to Issue Guidance Regulations for 403(b) Plans".

Besides the article attached to the newsletter,does anyone know where I might be able to obtain additional information on what Guidance the IRS may be releasing?

The IRS will tax @ 100% all qualified distributions. I had a small Roth I closed in 2002. This was a qualified distribution. The 1099 has a distribution code of T (exception - not taxable). The IRS has informed me the entire distribution amount is taxable. The IRS has also informed me that they will not discuss the matter untill all taxes, penalities and intrest are paid. At that time, I have the right to engage an attorney to attempt to have the monies returned. Since all the money was paid in after taxes, this is double taxation and nulifies any advantage of the so called tax savings. :angry:

Can anyone cite something in the DOL regs that would support a TPA firm providing the service of reviewing and approving loan applications? The plan sponsor signed a blanket loan authorization contract/agreement, and has no involvement in the process unless the participant does not provide supporting documentation, or another issue arises.

The auditor is stating that it is not acceptable to have a TPA firm perform this service. Do you have any idea why?

Also, why would an IRS auditor be reviewing DOL requirements?

Thanks

Is anyone aware of any reliable studies or information that examines the overall cost impact (if any) of adding coverage for domestic partners? Any info appreciated.

401(k) only plan has 3 months eligibility service requirement and quarterly entry (1/1, 4/1 etc). Employee is hired 6/23/03, layoff 8/19/2003, and rehired 5/17/04.

What is date of participation?

I have a client who had 113 participants in the beginning of the year so I filed as a small plan. There were 117 participants at the end or 2003 and entry date is 4/1 so I should be okay for 2004.

But can anyone tell me if once the participant count goes over 120 and has to be filed as a large plan with an outside audit can you ever go back and file under the waiver if and when the participant count drops below 120. The instructions seem to say that you have to have filed as a small plan in the prior year to claim the waiver.

This is a country club who's employee population fluctuates constantly.

I have access to a database and intend to prospect some plans..... Anyone have a good prospecting letter, advice about how I should go at this task?

Thanks!

Is there any need for a qualified plan to have an EIN? The plan's trust may need an EIN to report distributions (if there's no corporate trustee), but the plan wouldn't seem to have any need for one. But a faint bell rings in my head -- have I heard not too long ago that the IRS wants us to get EINs for plans? Or is that just another sign of advancing age?

Consider this factual scenario for a CONSTRUCTION industry

defined benefit plan.

Company A has two divisions (electrical and mechanical). They contribute

to a separate plans for this work. The electrical plan has significant withdrawal liability. Company A decides to sell their business to an unrelated buyer. Immediately after buying the company, buyer closes the electrical division.

Questions...

Does WL attach to the seller at the point of sale? They did not request a waiver or post the necessary bond.

Would the closure of the electrical division affect the answer? Under 4203 of ERISA, a construction industry employer may close his business without incurring WL so long as he doesn't reopen (non union) in 5 years. Therefore, absent the sale, the buyer would seem to be off the hook

Input is appreciated.

Is the correct code 8 or 9?